Harvard Law & Policy Review

rfra

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Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Abner S. Greene’s Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground? Professor Greene, who is the Leonard F. Manning Professor at Fordham Law School, writes:

The question will always be in the details: How do we evaluate the need for uniform enforcement versus the need for accommodation? To insist on one or the other to the extreme is to insist on the truth of one’s position in a way that threatens a certain kind of fundamentalism, a sureness of one’s position, which is improper both as a matter of political theory and as a matter of constitutional law. In the remainder of this article, I first discuss contemporary works by intellectual historians, each of whom resists the kind of pluralism I advance. I then criticize Ronald Dworkin’s final book for adopting both too expansive a view of religion and too narrow a view of how to protect it. Next, I evaluate the Court’s holding in the most recent religious accommodation case, Hobby Lobby, admiring its concern for such accommodation but critiquing its treatment of whether the law in question places a substantial burden on religious practice. Before concluding, I offer some brief thoughts on whether we should exempt from anti-discrimination law small business owners who object on religious grounds to providing services to same-sex couples in the setting of weddings or other commitment ceremonies.

Like several other articles previously featured on Notice & Comment, Professor Greene’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

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The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Marci A. Hamilton’s The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy. Professor Hamilton, who holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, writes:

In this article, I will first describe the Supreme Court’s Constitution-based religious accommodation jurisprudence before the first RFRA statute was enacted. Second, I will describe RFRA’s features and enactment, which violate widely-accepted principles of transparency. Third, I will describe the negative unintended (and intended) consequences of RFRA. Finally, I will propose an evidence-based approach to religious accommodation, which is a superior process for achieving sound public policy and the common good. In a nutshell, my proposal requires two initial steps: (1) repeal RFRA and, therefore, (2) return free exercise cases to the Court’s longstanding First Amendment jurisprudence, which provided ample room for legislative and executive accommodation involving a specific practice and a specific law. Once these legal repairs have been accomplished, the accommodation process should strive for greater accountability and transparency, meaning that legislators would take a more responsible position on the potential impact of the proposed accommodation by ascertaining: (1) the laws to be affected; (2) who is seeking to avoid their obligations under the law and for what practice; (3) who would be harmed by the proposed accommodation; and (4) the views of experts in the field and the public. The bottom line is that the federal and state RFRAs have been passed through ignorance, with only religious organizations knowing what laws they intend to break with a RFRA. Legislators have an obligation to all of their constituents, religious or not, and particularly to those they might be harming unknowingly. The proposal in this article is intended to create a more just process and one that shields victims of religious conduct, of which there are many.

Like several other articles previously featured on Notice & Comment, Professor Hamilton’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

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A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Alex J. Luchenitser’s A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws. Mr. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State, discusses the aftermath of the Supreme Court’s Hobby Lobby decision and its implications for the federal RFRA (and, by implication, state RFRAs). Mr. Luchenitser writes:

There are many options for repairing RFRA. For-profit businesses could be precluded from making claims under the statute. RFRA’s “substantial burden” requirement could be reinvigorated. The “least restrictive means” analysis could be rendered more deferential to the government. Specific statutes could be excluded from RFRA’s grasp. All the foregoing alternatives have drawbacks, however.

The soundest way of ensuring that Hobby Lobby does not open the door to private discrimination or other impositions of religious beliefs on persons who do not share them would be to specifically exclude from RFRA’s coverage requests for exemptions that would impose nontrivial burdens on third parties. Such an amendment would provide the most effective protection against future court decisions that—in the name of religious freedom—abridge such freedom instead of preserving it.

Like Professor Tebbe’s article, previously featured on Notice & Comment, Mr. Luchenitser’s article sheds some light on the recent controversy in Indiana and how we might avert potential subsequent controversies. Give it a read today!

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What Really Happened in Indiana?

By Allison Schultz

On March 26th, Indiana Governor Mike Pence signed Indiana’s Religious Freedom Restoration Act (RFRA) into law. Unlike the federal RFRA and most other state RFRAs, Indiana’s law explicitly stated that it could be invoked as a defense in private litigation — lawsuits in which the government is not a party. As the national media quickly pointed out, this meant that Indiana’s RFRA could be used as a defense in, for example, lawsuits alleging discrimination on the basis of sexual orientation.

Just one week later, in response to nationwide outcry, Governor Pence signed a RFRA “fix” that “clarified” that the law could not be used to justify discrimination on the basis of, among other things, sexual orientation. This is significant as it is the first time a statewide law explicitly creates a kind of protection based on sexual orientation — the state’s public accommodation law does not protect against discrimination on the basis of sexual orientation or gender identity.

This is undoubtedly a win for LGBT rights. But amidst celebration, it’s important to also take a few minutes to reflect on a few of the lessons and implications of how this past week has unfolded.

First, what can we learn from the Indiana RFRA saga about the state of LGBT rights in America? In short, it seems like tolerance for intolerance is wearing thin. Protest against the law was both immediate and intense, even though the practical consequences of the law vis-à-vis discrimination were actually far from certain. RFRA doesn’t create automatic exemptions for religious exercise. Rather, it states that a governmental entity may only substantially burden religious exercise if doing so is the least restrictive means of furthering a compelling state interest.

Two things are significant here. First, in order for RFRA to apply, a burden on religious exercise must be substantial. Courts have interpreted this to mean that a law must require an individual herself to engage in conduct that violates her religious beliefs. It’s unclear that creating a floral arrangement for a gay wedding would qualify. Second, RFRA will not provide a defense if the law in question is necessary to further a compelling state interest. Numerous state courts, and the Supreme Court, have recognized that anti-discrimination laws are the least restrictive means of furthering a compelling interest.

It’s certainly possible that a court would have allowed RFRA to be used as a defense in a discrimination suit, but it’s also possible that Indiana’s RFRA was more symbolic than anything else. The response, then, is also important for its symbolic value. Much of the nation, it seems, will no longer abide by even a suggestion of anti-LGBT discrimination. This could be quite significant as the Supreme Court gears up for oral argument in its landmark gay marriage case. If, as many have suggested, the Supreme Court is constrained by public opinion, then such a public outpouring of support for LGBT rights may influence how the Justices approach this case.

Second, what does all of this tell us about the relationship between the public and the legislature? If the public outcry over Indiana’s RFRA actually reflects how the majority of Americans feel, that Indiana passed this law in the first place indicates a troubling disconnect between legislative priorities and public opinion. It seems pretty clear that the law was primarily driven by a few conservative advocacy groups. It’s great that the law was quickly amended, but it should be a cause for concern anytime a law is passed only to be met with instantaneous and widespread public protest.

But this leads to another question: who exactly did protest the Indiana RFRA? Some Indiana businesses and universities were part of the backlash, but most of it seemed to be driven by organizations, businesses, and states outside of Indiana. With all of the media attention focused on the major national organizations boycotting Indiana, it’s unclear what the majority of Hoosiers actually think about the law. Should this matter? Unlike school desegregation or the Civil Rights Act, whether Indiana’s RFRA should protect religiously motivated discrimination is neither a constitutional question nor a matter of federal law. Amidst celebrating the victory that the “fix” to Indiana’s RFRA represents for LGBT rights, it is also worth thinking about what this story says about the political accountability of state legislatures. It certainly appears as though Indiana’s RFRA was a law created by conservative interest groups and amended by national pressure. When it comes to potentially discriminatory laws, whose interests should drive state law?

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Dangerous Precedents in Hobby Lobby

by Noah Marks

Yesterday morning, the Supreme Court decided Burwell v. Hobby Lobby, holding 5-4 that religious owners of closely-held corporations are exempt from the contraception coverage requirement of the Affordable Care Act based on the 1993 Religious Freedom and Restoration Act.

Writing for the majority, Justice Alito strains to emphasize the limited scope of the decision, claiming that it applies only to closely held companies, only to contraception, and only to this preexisting accommodation. Justice Ginsburg, in dissent, cuts through the rhetoric and reveals the decision’s true, “startling breadth,” given the uncertainty of the accommodation’s legality, the quantity and variety of closely held corporations, and the Court’s ominously limited explicit assurance that racial discrimination is not covered by its logic. [Read more…] about Dangerous Precedents in Hobby Lobby